Judge Reverses Convictions in Detroit 'Terrorism' Case

By DANNY HAKIM

The New York Times

September 3, 2004

DETROIT, Sept. 2 - A federal judge threw out the terrorism convictions of two
Arab immigrants on Thursday, undoing what the Justice Department once proclaimed
was its first major courtroom victory in the war on terror.

The
department itself requested the dismissal this week in an extraordinary filing
that savaged its own legal strategy against what it had characterized as a
sleeper cell plotting acts of terrorism.

The judge, Gerald E. Rosen,
acceded to the government's request for a new trial only on document fraud
charges, ending the terrorism case against the men, Abdel-Ilah Elmardoudi, 38,
and Karim Koubriti, 26, both from Morocco.

The judge was sharply
critical of the prosecutor who once led the case, Richard G. Convertino,
accusing him of a pattern of misconduct.

"Although prosecutors and
others entrusted with safeguarding us through the legal system clearly must be
innovative and think outside the conventional envelope in enforcing the law and
prosecuting terrorists, they must not act outside the Constitution," the judge
said in his decision. "Unfortunately,'' he added, "that is precisely what has
occurred in the course of this case."

While criticizing Mr. Convertino,
Judge Rosen praised those who replaced him and disowned the case.

Mr.
Elmardoudi and Mr. Koubriti remain in custody and face a new trial on the fraud
charges. A third Moroccan man, Ahmed Hannan, 36, was released this year to a
halfway house on an electronic tether. He had been convicted of document fraud.
A fourth man was acquitted of all charges last year.

Three of the men
were picked up in a raid six days after the Sept. 11 attacks. The group was
eventually accused of forming a terrorist cell based in Detroit and collecting
intelligence for terrorist plots.

But Judge Rosen said prosecutors
developed early on a theory about what happened "and then simply ignored or
avoided any evidence or information which contradicted or undermined that
view."

The judge's comments echoed the Justice Department's sharp rebuke
of Mr. Convertino, who was removed from the case late last year and is being
investigated for possible misconduct. The department said in its filing that
Mr. Convertino withheld a substantial amount of evidence from the court that
undermined every critical aspect of his terrorism case.

Lawyers for Mr.
Convertino, who is suing the department, have vigorously disputed that he
knowingly withheld significant evidence and said that the department was
retaliating against him for cooperating with a Congressional inquiry into the
nation's antiterrorism strategy.

Judge Rosen said in his decision that
"the prosecution materially misled the court, the jury and the defense as to the
nature, character and complexion of critical evidence that provided important
foundations for the prosecution's case."

Though the government's filing,
and the judge, found fault overwhelmingly with Mr. Convertino, some observers
saw other problems.

"The case fits into a broader pattern of the
Ashcroft Justice Department overplaying its hand in terror cases and making
broad allegations of terror without the evidence to back it up," said David
Cole, a law professor at Georgetown University.

Judge Rosen, who was
nominated to the federal court by the first President Bush, praised the prosecutor who led a
nine-month post-trial review of the case, Craig S. Morford. Mr. Morford was
dispatched from the federal prosecutor's office in Cleveland last year to lead
the review, which was ordered by Judge Rosen after the government revealed
evidence not disclosed before or during the trial. Last month, Mr. Morford was
appointed the top federal attorney in Detroit after Jeffrey G. Collins, who led
the office during the prosecution of the case, resigned.

"In the
court's view,'' Judge Rosen said, "the position the government has now taken,
confessing prosecutorial error and acquiescing in most of the relief sought by
the defendants, is not only the legally and ethically correct decision, it is in
the highest and best tradition of Department of Justice attorneys."